non-economic damages

105 – Keith Mitnik – Deeper Cuts: Systems That Simply Work

In this episode of the Trial Lawyer Nation podcast, Michael sits down with legendary Morgan & Morgan trial lawyer, podcast host, and author, Keith Mitnik, for a second time. They discuss Keith’s recently released book, “Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts,” new voir dire techniques, and the importance of words.

Jumping right into the podcast episode, Michael asks Keith how he gets full damages on cases with no obvious villain. Keith shares a recent example where he framed everything around the statement, “It’s not about how much she’s going to get. It’s about what was taken, and what’s a fair value for what was lost.” He draws an insightful connection between our modern-day justice system and the “eye for an eye” justice system of the past. The “brutal” eye for an eye system was never about the punishment, but about recognizing fully what was taken from the person who was wronged. He’ll explain this concept to the jury, and the results are powerful.

Keith continues by explaining the evolution of his voir dire process over the years, including how and when he gets the jury to get a discussion going. He’s tried many methods throughout the years and shares their flaws, but feels very good about his current strategy, which he calls “The First Big 3.” He’ll set up voir dire with the story about full recognition, then start questioning the jury on the big 3 types of bias:

  1. Feelings against this type of lawsuit.

  2. Feelings against the non-economic part of pain and suffering.

  3. Feelings against large verdicts.

After asking the jury about these 3 items, he’ll share the idea that it’s not about how much was taken, but how much was lost, and ask how it felt when they heard that.

Continuing this line of thought, Keith adds another change he sometimes makes to his voir dire, which is asserting that the jury’s job is not to assess the income of your client – it’s about the value of his or her health, which is way more precious than income. These changes have made for a great dialogue between Keith and the jury.

Michael then asks Keith about something he loved in the book – having the client create a list of the “little things.” Keith explains how we often base damages around the big things that are important to the client – but especially with hobbies, those things are rarely important and are often unrelatable for the jury.

To assist with this process, Keith gives clients a small notepad and a homework assignment- to write down every little thing they notice has changed due to their injury. This includes things they continue to do but in a different way and things they do but now it hurts. Then, he’ll sit down with the client to choose a list of the best ones. By the time the client is deposed, the client is able to readily provide a laundry list of relatable examples of how the crash has changed their life, and the defense lawyer is highly motivated to settle the case.

This leads Keith to share a brief but heartfelt story of a recent trial where he decided to ask the jury in voir dire about race, and why he plans to do it again in the future. It’s a story sure to resonate with any trial lawyer hesitant to bring up a sensitive topic in voir dire.

If you follow Keith Mitnik, you know he’s a man of many words – a self-proclaimed “word nerd.” So Michael asks the next logical question – why do words matter, and how does he come up with the words he uses? Keith explains the process he uses to find the best anchor words, where he circles any words he feels might not be the best, then turns to one of his many trusty thesauruses to see what else is available (He recommends either Word Hippo for iPhone or Wordflex for iPad). He shares some real-life examples before explaining the difference between inert words and activator words:

     Inert Words – Ambiguous words with different meanings to different people.

Activator Words – Consistently activate a particular meaning and a feeling.

From there, a word can be either a positive or a negative activator word, meaning it can work in your favor or against you if you aren’t careful. Keith shares numerous examples of inert and activator words, and how he chooses them based on the person he’s addressing.

Moving away from “Deeper Cuts,” Michael asks Keith what his strategy is for going into a case that someone else worked up to try it. Keith highlights the obvious disadvantages as well as the not-so-obvious advantages of this – notedly that he’s able to experience the case “in one, overwhelming wave, just like it will with the jury.” It provides a truly fresh perspective. His one requirement is that he needs to spend time with the client before the trial begins, to connect with them in his heart.

He continues by sharing the different ways he’s split cases up with other lawyers before, and how it varies depending on the other lawyer’s experience and skillset – though as you probably know, he almost always takes the voir dire, opening, and closing.

Michael and Keith then wrap up the episode with a promise to have Keith return soon. In the meantime, you can purchase his books Deeper Cuts: Systems That Simply Work from Winning Workups to Thumbs-Up Verdicts and Don’t Eat the Bruises, listen to Keith’s own podcast “Mitnik’s Monthly Brushstrokes,” and even join his listserv. To join, email Keith at kmitnik@forthepeople.com and copy his assistant Mary Arnold at marnold@forthepeople.com asking to join. They’ll even send you the past editions if you ask!

This podcast episode also covers why it’s important to emphasize your client’s injuries were brought to them “unnaturally,” a story from a recent trial where Keith had to improvise with a client on the stand, how to combat a convincing defense expert, why Keith almost always does both voir dire and opening, and much more, including numerous stories of Keith’s real-life trial experiences.

 

Bio:

Keith Mitnik is the author of Trial Guides’ bestselling book, Don’t Eat the Bruises:  How to Foil Their Plans to Spoil Your Case.

He is also known for his popular audiotape series “Winning at the Beginning” and for his monthly podcasts.

He is a frequent keynote speaker at seminars for trial lawyers across America.

Keith is Senior Trial Counsel for Morgan & Morgan. In that role, he is in trial almost every month, oftentimes 2 or 3 times a month, trying everything from suits against cigarette companies, medical malpractice, and product cases to car crashes and premises cases.

His list of verdicts is staggering.

He has been a commentator on many national television broadcasts and has been interviewed by Mike Wallace on 60 Minutes.

Keith is recognized for creating and teaching systems that simply work – for any lawyer, in any case.

Lawyers all over the country attribute significant verdicts to his methods.

 

58 – Nick Rowley – Brutal Honesty

In this long-awaited podcast, Michael sits down with renowned trial lawyer Nick Rowley. They discuss Nick’s journey to success, how he came up with “brutal honesty,” his book “Running With the Bulls,” the secret to settling high value cases, saying “no” to the defense, and Nick’s advice for how to become a better trial lawyer.

The conversation begins with Nick sharing his path to becoming the record-breaking trial lawyer he is today. Nick describes himself as a “juvenile delinquent” when he was a child. He was bullied a lot in school and expelled from every school he attended. After graduation, he decided to join the military to “kill bad guys,” but ended up becoming a medic. It was this role that fueled him with purpose. Using his GI Bill, Nick finished his bachelor’s degree and attended law school to continue his desire to help others, which he describes as an addiction.

Nick was never afraid to take tough cases to trial and losing, because he grew up getting beat up. He adds that even if he does lose, he learns more from his losses than his wins and they help make him a better lawyer. Michael echoes this sentiment and agrees that losses hurt in the short-term, but don’t bother him in the long run.

The conversation shifts when Michael shares how he’s noticed most top trial lawyers weren’t “born with a silver spoon in their mouth,” to which Nick wholeheartedly agrees. “It’s about life experience,” Nick states. He goes on to explain how if you’ve never had to work hard, experience failure, been afraid, or gone without, you don’t have the same “hunger” as someone who has. Nick emphasizes the importance of inner drive and notes trial lawyers who grew up without anything know if they don’t put in the work, no one else is going to do it for them. Michael also explains how it’s easier to feel comfortable in a client’s home when you’re used to the environment most of them live in. Both share stories of getting to know clients on a personal level and how this translates to a successful jury verdict.

Michael then transitions by asking Nick which case he is most proud of in his established career. Instead of talking about his largest verdict, he shares a story of a smaller verdict on a particularly challenging case. After being called upon by a lawyer having severe health issues the day before his trial was set to begin, Nick flew out to Santa Monica to help get the case continued. The defense lawyer was uncooperative and lacked the slightest bit of sympathy for the attorney, so Nick decided to try it without any prior knowledge of the case. His description of voir dire and addressing what he saw as the pain points of the case with brutal honesty is riveting and concludes with a $1.5 million verdict based solely on non-economic damages.

Nick is highly regarded as a trial lawyer for many reasons, but he is probably most famous for coining the term “brutally honest” in jury selection. Nick shares the story of how he came up with the term and explains why it works so well. He emphasizes the importance of asking jurors to define “brutal honesty” themselves, then asking them to please be brutally honest with you. This strategy has made a huge difference in Nick’s jury selection process. As an example, Michael role plays as a juror who doesn’t believe in money for pain. Through this example, Nick shows how he would address a juror with these views. Michael and Nick both agree stereotyping jurors immediately is an ineffective strategy and should be avoided.

The conversation shifts into a discussion of Nick’s book, “Running With the Bulls.” Michael inquires as to why Nick decided to write a book about settling cases when he is most famous for trying cases. Nick answers simply, “I do settle cases.” Nick insists the secret to settling cases for high value is “having the balls to go to trial.” He describes his frustration with not getting paid after a jury verdict and started thinking of ways to preemptively strike against this, so as soon as he gets his jury verdict he is “able to collect it immediately.” This resulted in Nick crafting a process to “expose the bullshit” and the insurance company puppet masters, a process he shares with fellow plaintiff attorneys to help raise the bar for everyone.

Michael shares the chapter of the book which resonated with him the most, “The Power of No.” He explains how he still feels bad for saying “no” to the defense, even though he knows better. Nick believes most trial lawyers are gentle, accommodating people by nature. He shares a strategy for re-framing this mindset when it comes to the defense, ending with, “They are the enemy, because they’re working for the enemy … be kind and accommodating. But when it comes to money, don’t hold anything back.”

The two transition into a discussion of criteria for accepting cases. Nick states there aren’t criteria. For him it is asking himself – Do I feel something inside? Is there something I can do for this person? Can I imagine myself standing in front of the jury? He notes that in an ideal world, he would only work on large cases, but argues the small cases are just as important, stating “If I’m not willing to take these cases, who else is?” For example, a case where a child was killed in a state with a $250,000 cap on non-economic damages is still a case worth fighting for. Nick emphasizes the need for industry leaders to set an example for other lawyers by taking on these worthy cases, even if they don’t lead to a huge payout.

The conversation ends with Michael asking Nick what he thinks a lawyer needs to do to be the next Nick Rowley. Nick states, “I want the lawyer who has the drive to do whatever it takes.” He emphasizes the importance of learning everything available from industry experts, listing off a multitude of names including Keith Mitnik, David Ball, Randi McGinn, and many more. He adds that having the guts to try difficult cases, learning from your losses, and breaking the mold are incredibly important in the journey to becoming a successful trial lawyer.

If you’d like to learn more from Nick Rowley, subscribe to the Trial By Human and Trial By Women list serves, attend his seminars, or visit his website to find more information about bringing Nick in on a case. You can also support Nick’s political efforts to fight the $250,000 cap on non-economic damages by visiting fairnessact.com.

This podcast also covers taking care of yourself during trial, lifting state caps on non-economic damages, the pain of trying a wrongful death case, where Nick is trying to improve, and so much more.

 

BACKGROUND ON NICK ROWLEY

Many consider Nicholas C. Rowley to be the most accomplished trial lawyer of his generation. He has extensive courtroom experience representing victims of serious injuries and medical malpractice, especially those who have suffered traumatic brain injuries, spinal injuries, and chronic pain. In 2009 and 2010, the Consumer Attorneys Association of Los Angeles (CAALA) named Nick as a finalist for its prestigious “Trial Lawyer of the Year” award. Nick was also recognized by the Los Angeles Daily Journal for winning a “Top Verdict of 2010” for his $31.6 million jury verdict for the victim of a traumatic brain injury. In 2012, Nick was a finalist for the “Consumer Attorney of the Year” award, given by CAOC (Consumer Attorneys of California). In 2009, the Consumer Attorneys of San Diego awarded Nick its “Outstanding Trial Lawyer” award. In 2013, Nick was honored with the organization’s top award – “Outstanding Trial Lawyer of the Year“.  Also Some of Nick’s other recent successes include a record-setting $74,525,000 verdict for a victim of medical malpractice, a $38,600,000 jury verdict for a young man who fell from a hotel balcony while intoxicated, a $17,000,000 win for woman who suffered a mild traumatic brain injury caused by a fall from a hotel window and a $13,860,000 win for a mild traumatic brain injury caused by an automobile crash.

Nick has served as an instructor at Gerry Spence’s famed Trial Lawyers College and delivers keynote addresses nationwide on his revolutionary approach to voir dire and damages. Other lawyers, faced with low settlement offers from insurance companies, frequently bring Nick into their cases just before trial. Nick is a relentless warrior who has prevailed in the courtroom time and time again. He prides himself on his caring and empathetic approach to working with his clients and their families, and his ability to help juries find the truth and deliver justice to the injured.

Nick is on the Board of Directors of the Imagination Workshop, which is a non-profit theater arts organization committed to using the unique power of the theater to provide life-changing artistic opportunities to the mentally ill, homeless veterans, senior citizens, and ‘at-risk’ young people. IW programs give troubled people, frequently alienated or overlooked by society, a safe way to express themselves and gain insight that often helps make their lives more successful.

Nick is also on the Honorary Board of Governors of TLC, Los Angeles Trial Lawyers’  Charties, a non-profit organization whose purpose is to make a positive difference in the quality of life for people within the greater Los Angeles area, focusing on issues related to education, children, battered women, persons with disabilities, and homelessness, by providing financial assistance to needy persons and groups in the greater Los Angeles area.

Nick is the author of the book Trial By Human, where he candidly shares his approach that brings brutal honesty and humanity into the courtroom.

 

31 – Malorie Peacock – Proven Techniques for Proving Damages

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with Cowen | Rodriguez | Peacock partner, Malorie Peacock, to answer the questions of our listeners. This show focuses on how to prove your client’s harms and losses at trial.

The first listener question is regarding the idea of whether 3X the medical bills is typically what you use to determine damages or does that only apply in certain cases? Michael recalls being taught the 3X “rule of thumb” back when he was first starting as a trial lawyer, but since then, no longer does for several reasons. First and foremost, times have changed along with insurance company practices. If an insurance company or defense attorney does start to talk to you about 3X medical bills, it’s likely because your case is worth a lot more than that. Instead, Michael focuses on what a jury might do when they look at each element of damage (pain, mental anguish, impairment, or whatever the measure of damage is in a particular state) individually and determine what they feel compelled to put in each blank. That, paired with what Michael calls “piss off factors” based on things the defense might do to compel a juror to give full justice for, becomes a number he’d like to keep as high as possible. Of course, he also takes into account whether his client is for some reason not likable or the defense is super likable, which can also affect the jury’s motivation in an adverse way for his case. Malorie also brings up another important note on the effects of jurors taking into consideration the percentage of fault even though they are instructed not to do so. To which Michael elaborates a little more on how to potentially work the messaging of that to the jury.

The next question by our listeners is how do you work up damages, especially in a smaller case that doesn’t warrant bringing in experts or producing lots of exhibits? Michael starts to answer this question by clarifying that experts generally do not help work up damages, but rather help to prove calculations on future medical expenses or a vocational loss. Having said that, with regard to the human and non-economic damages, he believes people who come in and talk about your client, how they were before, what they went through, and what they are like now can have the biggest impact. This also doesn’t cost any money toward the case. It does, however, take a lot of time in order to visit with these people to talk through what they know of the client before, during, and after, as well as collect photos or videos showing the client in a different state prior to suffering damages, etc. Michael discusses how this approach, even by taking the time to meet with people and learning your client’s story better, will make you more authentic in the courtroom which can have a profound impact on your case. Malorie sums this point up reminding us that all of our clients are more than just their injuries.

The next question they explore is regarding a wrongful death case without economic damages, which Malorie takes the reins on and starts with conveying just how hard it is to put a number on life when no amount of money will ever replace someone’s loved one. She goes on to elaborate that although you can do focus groups, they are not truly predictive. It will always boil down to the 12 jurors you get on any specific day in court who will ultimately put that number on a case. Michael adds that liability is what really tends to drive the number in wrongful death cases and it sometimes becomes very hard to have a conversation with the surviving family member(s) on the difference in the value of life versus the value of a case. He also shares how going to trial in a death case is extremely tough for the family as they relive one of the most painful events in their lives, which places a real responsibility on us as lawyers to make sure we are doing the right thing. Whether that means turning down an offer that is not sufficient to go to trial to fight for more and making an informed choice while understanding upfront the process and pain that will likely come with going through the details all over again. Malorie also describes the importance of knowing your client (a common theme throughout this episode) and understanding their goals, hopes, and struggles for their future to be able to help guide them through the conversation about money.

Proving grief is another topic Michael and Malorie explore with the belief from some jurors that everyone dies at some point. They both agree that there is a definite difference between dying when it’s time and dying when it’s not your time because of a tragic incident. Michael also points out the balancing act that occurs when you don’t want to “torture” your client and make them cry by bringing up all the pain and suffering they encounter now that their loved one is no longer here vs. focusing on the hopes that were and the plans for the future that have now changed because of the actions of someone else. He also points out that this is a good time to utilize experts like grief counselors and let them talk about the pain and suffering your client is, and will, experience due to the loss as well as the grieving process and the natural cycle of grieving to help paint an appropriate picture for the jury. They also give several other examples of ways to express the pain and loss without having to pull tears out of the surviving family members directly.

Michael and Malorie continue their abundance mentality by sharing so much great information in this episode on topics like when to submit and when not to submit a medical bill toward damages; avoiding the status quo and navigating a case to motivate a jury to give your client the justice they deserve; where do your client’s harms and losses fit into the greater story of the trial; an ideal “3 act” trial story through the juror’s eyes; how not to present your client’s harms and losses in a vacuum; how to get your client’s actual story (hint – it’s not what you might think); tips on utilizing psychodramatic methods; expediting the process of spending time with your client to understand their story; how Pareto’s Law can be applied to your docket; and so much more.

These Table Talk podcasts could not happen without the interaction and questions that are submitted by our listeners. We are eternally grateful for and encourage you to continue to send us your thoughts, ideas, and questions as we love sharing our experiences with all of you.

“Please note the TLN19 discount code mentioned in this show has now expired.”

22 – Paul Byrd – Understanding Conservative Jurors

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In this Trial Lawyer Nation podcast, Michael Cowen sits down with author, speaker, and seasoned trial lawyer, Paul Byrd from Arkansas for a deep dive into the minds of conservatives and what we can do to better communicate with them on juries. Kicking things right off, Michael and Paul agree that the likelihood of having a jury panel made up of only liberals is not only low, but likely not preferential either as Paul points out and sets the tone for the conversation.

As a self-proclaimed “Republican trial lawyer,” Paul talks about the juxtaposition of not being felt trusted in trial lawyer arenas because he is a Republican, while also not feeling trusted in Republican arenas because he is a trial lawyer. This is something he never really understood in terms of why they didn’t seem to fit together as he feels strongly there are many values that cross over between the two and has led to his study of conservatism in the courtroom.

Like many trial lawyers, Paul’s desire to reach jurors, and to reach voters who wanted to vote in the courtroom forum, has always been met with some resistance from those who are fiercely independent. Paul’s in-depth understanding of the interesting history of the Scotch/Irish in America, and how it paved the way for conservative thinking, helps to lay the foundation of working with conservatives in the courtroom. When asked how trial lawyers might learn from and relate to people who may have a more conservative value system than themselves, Paul suggests talking to experts in the field as well as using solid focus groups. Michael adds, from his own experience, that they can also take an introspective approach and work on themselves, learning to talk to people, listen nonjudgmentally,  and understand that conservatives are still good people by and large. In other words, take the time to listen to people, even if it’s not what you want to hear, in order to gain perspective.

In this day and age, it is hard NOT to bring up the topic of social media, given the politically charged climate on social platforms, to which Paul brings up a great point that although they tell jurors not to look on social media to find lawyers involved, they commonly still do. He goes on to describe how people will typecast you as much as you typecast them with the posts they may find in your social accounts, so it is likely best to stay away from partisan posts in today’s world. Michael adds how he tends to avoid posting political things to his feed as some juror could potentially be immediately turned off by it regardless of which side of the issues he’s on. He also goes on to say if you can start the conversation with an open mind, you may be able to convince someone one way or the other, but if they are turned off before you begin the conversation (perhaps by seeing a politically-charged post), the likelihood of there being any movement is slim.

Paul points out how some of the biggest verdicts have come from the most conservative juries and sometimes it simply becomes a matter of helping your jury understand what the rules are. He gives a great example regarding a case which involved horseplay around a pool where a man was pushed in, broke his neck, and drowned. His focus groups were leaning one way with the understanding that the man who was pushed in was the jokester; but once the rules were laid out by way of the pool manufacturer’s safety warnings and revealing the pusher was the homeowner, the case became much easier to solidify because the group understood what they were defining as the rules.

Michael asks Paul if there are any buzz words or behaviors which can alienate a conservative jury. To which Paul expresses how it can actually work against you if you focus too much on trying to make jurors feel sorry for a client because it was a horrific injury. He goes on to say that jurors have become hardened over the years having been exposed to so much that empathy or sorrow will not carry a case alone anymore. You really have to find the rule or the “why” moment in a case of how the wrongdoer should be held responsible.

The conversation culminates in a discussion about how “non-economic damages” are viewed by jurors and the conservative spin which has likely brought us to where we are today. Paul first directs his attention to the argument regarding the caps placed on non-economic damages in some states and how some view these decisions as unfair toward particular sets of people (ex: stay at home parents) where there is no pattern of lost wages or income. He then digs deeper in a couple of examples to really make you think a little harder about what’s “real” to those who have been catastrophically injured while using plain English to cut through partisan lines and strike the core of most every human. It’s truly fascinating how Paul thinks about these things and we were glad he was willing to share his thoughts and insights with us and the rest of the Trial Lawyer Nation.

Background on Paul Byrd

Paul Byrd has been representing deserving injured victims for almost 30 years.   After clerking for a trial court, Paul went into private practice in 1988. Paul’s practice has focused on civil litigation with an emphasis on representing consumers in product liability actions, both individually and in Mass Tort Litigation. He is the Immediate Past Chair of the AAJ Product Liability Section and on the Board of Governors of AAJ.   He has spoken on “How to Talk to Conservatives” all over the United States and has a current video on the topic published by Trial Guides.

In November of 2000, he was featured on the front page of the Wall Street Journal due to his work in the case of Brownlee/Whitaker vs. Cooper Tire and Rubber Company.  He also appeared in a Dateline NBC documentary regarding the same case in January of 2001.

Paul has also represented farmers in agricultural litigation regarding genetically modified crop contamination that had global as well as national and local implications.

Paul is a past President of the Arkansas Trial Lawyers Association. His message to his fellow members as President was “You went to law school to make a difference!”.

In 2012, Paul was a co-recipient of the Outstanding Trial Lawyer of the Year Award from the Arkansas Trial Lawyers Association.

He is the managing member of the Little Rock, Arkansas office of Paul Byrd Law Firm, PLLC.

He has an “AV” rating in the Martindale-Hubble Legal Directory, has been recognized by the Mid-South Super Lawyers, and is also a life member of the Million Dollar Advocates Forum.

Affiliations

  • Arkansas Trial Lawyers Association
  • American Association for Justice
  • American Bar Association
  • Arkansas Bar Association
  • Pulaski County Bar Association
  • St. Thomas More Society